HR issues fill Congress' in box - human resources-related legislation - includes related article on Senator Michael Enzi's first year in Congress - Cover Story

Halfway through the 105th Congress, some progress has been made on HR-related issues.

Employers had high hopes a year ago that the incoming Congress would be both willing and able to lighten the regulatory burden that its predecessors had heaped upon the business community. Among the reasons for optimism were organized labor's chaotic state of affairs and the ascension to power of legislators either fiercely opposed to unions or aware of the political clout wielded by employers.

Republicans remained in control of both the Senate and the House of Representatives, despite a well-funded campaign by the AFL-CIO to restore Democrats to power in the House, where they enjoyed a majority for four decades until the watershed 1994 elections. The AFL-CIO raised and targeted $35 million during the 1996 elections against conservative Republicans. But the GOP maintained a slim majority in the House and increased its margin in the Senate to 55-45.

As the 105th Congress geared up in January 1997, human resource issues were at the forefront. Bills that would allow employees covered by the Fair Labor Standards Act (FLSA) to substitute compensatory time off for overtime pay, with the consent of their employers, were among the first four proposals introduced in each chamber. That indicated how strongly congressional leaders, including Senate Majority Leader Trent Lott and House Speaker Newt Gingrich, felt about the need for the legislation. And hearings were held in early 1997 on the Teamwork for Employees and Managers (TEAM) Act, which attempts to clear up uncertainty about whether employers can meet informally with their workers to discuss nonwage and hour issues without violating the National Labor Relations Act (NLRA).

Soon, however, Congress became engulfed in debate about how to bring the federal budget deficit under control. As soon as a landmark, long-term agreement with the White House was reached on that issue, legislators turned their attention to the annual appropriations bills in hopes of avoiding more federal government shutdowns similar to those in 1995. Congressional attention also focused on investigations of campaign finance reform and debates about "fast-track" trade negotiations.

At the midpoint of the two-year congressional session, Rep. William Goodling, R-Pa., chairman of the House Education and the Workforce Committee, says the scene is set for more progress on HR concerns in the second year. "This first year focused on oversight of employment laws and agencies and laying the groundwork for possible enactment of legislation next year with tough overview hearings on the Equal Employment Opportunity Commission, the National Labor Relations Board, Occupational Safety and Health Administration, implementation of the Family and Medical Leave Act and the Teamsters election," Goodling said in a statement to HRMagazine. "We also passed on the House floor compensatory time legislation (H.R. 1) early in the year [and] reported from the committee comprehensive legislation radically changing the way union dues are collected - also setting the stage for an intense debate on this important issue" in 1998.

And in the large and far-reaching tax bill enacted last summer, the Society for Human Resource Management (SHRM) lobbied successfully for a three-and-a-half year extension of the Section 127 tax exclusion for employer-provided tuition assistance - an on-again, off-again tax break popular with employers and employees alike.

Workers' retirement planning concerns also were addressed Nov. 19 with passage of the "Savings are Vital to Everyone's Retirement" (SAVER) Act, which directs the U.S. Labor Department to maintain an education and outreach program to encourage workers to save and invest for their retirement. "While SHRM applauds Congress and the president for enactment of this legislation, we look forward to more congressional debate on the critical issue of Social Security reform," said Rod Leis, compensation policy manager for Exxon Corp. and a member of the SHRM Legislative Action Committee. "Everyone knows we're headed for trouble and Congress must debate and discuss this issue sooner rather than later."

JOCKEYING FOR POSITION IN 1998

Congressional observers contacted by HRMagazine differ about the prospects for key legislation, including the comp time and TEAM bills. But SHRM lobbyists and other business interests hope Congress will be more attuned to employers' compliance burdens now that the Congressional Accountability Act has forced lawmakers to abide by many of the laws and regulations that initially covered only private employers.

Organized labor is unlikely to concede any major legislative-battles. The AFL-CIO has been increasingly aggressive since October 1995, when John Sweeney assumed its presidency with the fervor of a television evangelist and vowed to reverse the long-term decline in union membership. Despite damage to the Teamsters' image from Justice Department and congressional examinations of its election, the Teamsters were widely perceived as winners in the contract battle with the United Parcel Service after a nationwide strike. Other unions have been aggressively courting new workers.

President Clinton has either committed himself to or is leaning toward labor's positions on a number of bills. And Vice President Gore, while trying to maintain strong ties to the business community, does not want to lose organized labor's support in his all-but-certain presidential bid in the year 2000. Gore's strongest Democratic rival for the presidency, House Minority Leader Richard Gephardt, is a vocal union supporter.

The Clinton administration last year made a number of overtures to court organized labor's support. Speaking before the AFL-CIO in April, Gore outlined a proposed executive order that would have required federal contractors to accept project labor agreements negotiated by federal agencies and unions; the administration later toned down the proposal to the level of a presidential directive when congressional Republicans held up Alexis Herman's confirmation as labor secretary. After Herman was confirmed, she appeared at the AFLCIO Constitutional Convention to reiterate that Clinton planned to veto the TEAM Act-a Republican legislative initiative that would allow the wider use of employee involvement programs.

HEALTH CARE REMAINS HOT

Health care will continue to be a hot legislative issue in 1998, predicts Julia Jackson Bellinger, SHRM manager of tax/benefits legislation and regulation.

"We expect to see several anti-managed care initiatives, including a major legislative effort on the 'Patient Access to Responsible Care Act,' which could hold HR professionals liable in medical malpractice suits and pre-empts several ERISA provisions." She said SHRM opposes the bill based on its adopted health-care principle that "employers support expanding the use of managed care programs."

On Nov. 20, President Clinton endorsed recommendations of his advisory commission for a "bill of rights" for health care consumers. Bellinger said SHRM will closely monitor legislation that Clinton will propose with a variety of implications for HR professionals - especially employers with self-insured plans including guarantees of information disclosure, choice of providers and appeals panels for complaints.

TIME FOR COMP TIME?

Passage of the comp time bills, which have attracted some Democratic support, will depend on how well Republicans are able to frame the legislation as a pro-family initiative, rather than an attempt by employers to reduce overtime costs. That is clearly the supporters' strategy. Goodling, whose Education and the Workforce Committee approved the House comp time bill last March, called it "pro-worker, family-friendly legislation" in a "Dear Colleague" letter soliciting support for the measure. Both a House committee hearing on a bill authored by Rep. Cass Ballenger, R-N.C., and a Senate Labor and Human Resources Committee hearing on a more comprehensive FLSA reform bill introduced by Sen. John Ashcroft, R-Mo., featured testimony about middle-income working parents forced to accept overtime pay when they would have preferred extra time with their children. At the Senate Labor hearing last February, SHRM President and CEO Michael R. Losey, SPHR, testified that women particularly want greater scheduling flexibility.

The House approved its comp time bill in March, but supporters failed to end Democratic filibusters in the Senate, leaving the legislation on hold. Ashcroft's bill would allow FLSA-covered employees to work 80 hours over two weeks before overtime pay kicks in. FLSA now requires time-and-a-half pay after 40 hours work in one week.

SHRM lobbyists predict the Senate's broader FLSA reform bill will be amended to resemble the narrower House-passed bill.

Economist Marvin H. Kosters of the American Enterprise Institute told HRMagazine he does not expect comp time or flexible workweek proposals to be enacted in 1998 - largely because unions that are seeking to "further their own institutional interests" are making FLSA reform a litmus test of how lawmakers stand on organized labor. He believes union opposition to compensatory time off is a "knee-jerk" reaction that is out of sync with the workers whose interests the unions purport to represent.

Nelson Litterst, a lobbyist for the National Federation of Independent Business (NFIB), which represents the interests of small businesses, says there is "no question" in his mind that unions regard comp time as a test of labor's friends. Despite the bills' provisions that time off in lieu of extra pay would be taken with the mutual consent of employers and workers, "the unions' argument is that employers are all bad people" who will force employees to give up overtime pay, he says.

AFFIRMATIVE ACTION

In a closely watched affirmative action dispute, the Supreme Court declined to hear an appeal of a circuit court ruling upholding California's Proposition 209 initiative, which prohibits the state from granting preferences to minorities in contracting, hiring and school admissions. The high court's refusal to get involved is being hailed as a victory for anti-affirmative action forces and an omen that could encourage Congress to advance similar legislation. Already, says Barry Roseman of the National Employment Lawyers' Association (NELA), there are indications that Republicans in Congress hope to curtail hiring and promotion preferences that minorities have enjoyed for three decades. Noting the Senate Judiciary Committee's grilling of Bill Lann Lee - nominated to head the Justice Department's civil rights office - because of Lee's representation of minorities in discrimination lawsuits, Roseman says of the clamor against affirmative action: "I don't see it dying down." However, Roseman - whose organization represents lawyers who defend plaintiffs in discrimination cases - says some Republicans are concerned that the GOP's anti-affirmative action stance could hurt party candidates seeking votes within minority communities.

Bills to prohibit "discrimination and preferential treatment on the basis of race, color, national origin or sex in federal actions" were introduced in June by Rep. Charles Canady, R-Fla., and Sen. Mitch McConnell, R-Ky. The House Judiciary Committee on Nov. 6 voted 17-9 to approve a motion by Rep. George Gekas, R-Pa., to table the Canady bill, with three other Republicans supporting Gekas. Canady, despite being snubbed by four GOP colleagues, vowed to try again this year. Yet the vote cast a shadow over the fate of both the Canady bill and the McConnell proposal.

A lobbyist with the Labor Policy Association (LPA), which represents senior HR executives of about 240 companies employing about 12 percent of U.S. private-sector workers, believes the success of the California referendum has put affirmative action reform "back on the block" for Congress. If the California case prompts groups in other states to pursue similar initiatives, Congress wouldn't necessarily be discouraged from acting, says Tim Bartl, associate general counsel for the LPA. In fact, Bartl believes, a wave of activity at the state level might encourage Congress to jump on the bandwagon.

TEAMWORK ON TEAM ACT

Bills to encourage employers to team up with workers to discuss workplace issues other than wages and hours have been given a boost by two developments. Just as it appeared that Democrats and Republicans would have a tough time meeting in the middle, Sen. Jeff Bingaman, D-N.M., drafted compromise TEAM legislation that may show some promise of being enacted. The Bingaman proposal would create a "safe harbor" within the NLRA for employer-employee participation committees - also known as quality circles, job enrichment programs or information-sharing groups. The legality of these groups was thrown into doubt when the National Labor Relations Board ruled in 1992 that "action committees" established by Electromation Inc. were actually labor organizations unlawfully dominated by the employer. Bingaman's compromise also would prohibit establishing such teams in workplaces where legitimate union organizing efforts are under way.

The second favorable development came last August when the Democratic Leadership Council - a centrist group - endorsed the Bingaman approach. However, Labor Secretary Herman told the AFL-CIO that the Clinton administration plans to "stand shoulder to shoulder" with organized labor in opposition to TEAM legislation, which she says would authorize employers to create "sham unions."

Bartl says he is encouraged by the DLC endorsement, which he interprets as an indication that Democrats and Republicans are moving toward a "philosophical agreement" on employer-employee participation groups. However, he holds no hope that organized labor will soften in its opposition to TEAM legislation, which has risen nearly to the level of a "flagship" issue for unions - second only to "fast-track" trade negotiating authority that the administration sought unsuccessfully last year. On the other hand, according to the NELA's Roseman, Republicans aren't likely to slow their push for TEAM.

OSHA REFORM

One proposal that appears to stand a good chance of congressional passage is a bill to revise the Occupational Safety and Health (OSH) Act. Among other things, the proposal would allow qualified private firms to perform workplace inspections. Currently, the Occupational Safety and Health Administration (OSHA) - a division of the Department of Labor - conducts all on-site health and safety inspections. Identical bills introduced by Sen. Michael Enzi, R-Wyo., and Rep. James Talent, R-Mo., would allow employers to hire independent consultants to inspect their workplaces. (Talent discusses the legislation in a "Viewpoint" column in the January HR News.) Any employer receiving a declaration of OSH Act compliance from a certified consultant would be immune from most OSHA-imposed civil penalties for two years. The legislation also would prohibit OSHA from requiring that its inspectors meet quotas involving the number of inspections conducted, citations issued or penalties collected.

On Oct. 22, less than a month after Enzi's bill was introduced, it had already cleared the Senate Labor and Human Resources Committee after a one-day "mark-up" or voting session. Enzi, PHR, who is the first SHRM member and HR professional to serve in the Senate, told HRMagazine that the speed with which his bill got to the Senate was highly unusual particularly for a proposal from a freshman senator.

However, a veto is likely if the bill reaches the president's desk. Labor Secretary Herman, in an Oct. 22 letter to the Senate, announced the administration's opposition to the Enzi bill, which she said would "undermine OSHA's self-improvements, while also eliminating significant protections and safeguards." And a Reagan administration official - former OSHA Administrator Patrick R. Tyson - on Oct. 27 told the National Safety Council that the bill would put third-party auditors at great risk of being sued by employees who became injured after an auditor gave an employer a clean bill of health.

Enzi says he is dismayed that the Clinton administration would oppose the idea of letting a party other than OSHA do workplace inspections, even if the consultants have been certified by the agency. By doing so, the administration "unfortunately" sends a signal that it is trying to protect OSHA's turf, he says. And Enzi says Tyson's liability concerns have been addressed in his bill, which "does not leave the inspector hanging out there."

Mary Reed of the NFIB is optimistic about the chances of the Enzi-Talent legislation winning congressional approval. Majority Leader Lott has indicated he may bring Enzi's bill to the Senate floor in early 1998 - possibly in March - as one of the chamber's top 10 priorities for the year, she told HRMagazine. In the House, Talent - who chairs the Small Business Committee - persuaded three Democrats to sign on as initial cosponsors of his bill. Reed says Talent probably will hold hearings on OSHA reform in early 1998, but likely will wait to see what happens in the Senate with Enzi's bill before trying to move his own bill out of committee. She calls the third-party inspection provision the "crown jewel" of both bills.

OTHER LEGISLATION

Other proposals affecting human resource professionals that are likely to see debate, if not action, this year would reduce the administrative burden caused by the Family and Medical Leave Act (FMLA) of 1993; protect employees from discrimination because of their religious beliefs or sexual orientation; give employees more information about and control over the spending of union dues; and clarify the legal distinction between employees and independent contractors.

Amending the FMLA has been a top priority of SHRM, which leads the FMLA Technical Corrections Coalition of more than 350 companies and business-related associations. Human resource managers, especially those with larger employers, have complained about abuse of leave allowances resulting from the law's broad definition of "serious health condition" and administrative burdens created by the many short, intermittent absences it permits. SHRM also opposes bills that would expand FMLA to smaller employers and other uses for leave, including up to 24 hours a year for parents to attend school-related functions.

Given the health of the economy, it is possible that some Democrats may push for another increase in the federal minimum wage. The Economic Policy Institute - a research organization founded by former Labor Secretary Robert Reich and others - last summer released a report concluding that the first 50-cents-per-hour increase mandated by the Small Business Jobs Protection Act of 1996 had shown no signs of causing widespread job loss. Sen. Edward M. Kennedy, D-Mass., who helped push the two-tiered 90-cent wage hike through Congress, trumpeted the report as proof that opponents of the bill were wrong in asserting that minimum wage increases would leave thousands of people jobless.

AEI's Kosters says he wouldn't be surprised to see Kennedy and other liberal Democrats use the report as ammunition to argue for additional wage hikes. The LPA's Bartl says wage hike foes could argue that Congress should let the issue shift to the state level, so that states with economies strong enough to withstand increases in employment costs could opt to raise the minimum wage. However, Bartl adds, "once you have federal action on any [issue] it's very difficult to simply let it go to the states."

Some Pending HR Legislation

Civil Rights Act of 1997

Civil Rights Act of 1997 (S. 950, H.R. 1909) would prohibit preferences for minorities in federal employment, contracting and other programs.

TEAM Act

Teamwork for Employees and Managers (TEAM) Act (H.R. 634, . 295) would amend the National Labor Relations Act to ensure latitude for employee involvement committees.

Working Families Flexibility Act

Working Families Flexibility Act (H.R. 1) would allow employers and employees to mutually agree on comp time in lieu of overtime pay. Family Friendly Workplace Act (S. 4), similar on comp time to H.R. 1, also would allow voluntary schedules of 80 hours over two weeks without overtime liability.

Patients Access to Responsible Care Act

Patient Access to Responsible Care Act (H.R. 1415, S. 644) would impose various requirements for employer-sponsored health care plans.

Worker Paycheck Fairness Act

Worker Paycheck Fairness Act (H.R. 1625) would require unions to obtain written permission of members to spend union dues for political purposes.

Family and Medical Leave Act

Family and Medical Leave Act amendments (H.R. 109, S. 183, S. 280) would expand coverage of FMLA to smaller employers and allow leaves for more reasons, such as participation in children's school activities.

SAFE Act

Safety Advancement for Employees (SAFE) Act (S. 1237, H.R. 2597) would allow employers with clean compliance records to hire OSHA-certified independent contractors to conduct workplace inspections.

RELATED ARTICLE: Sen. Enzi's On-the-Job Training

The Freshman Senator Encounters a Few Surprises

BY ROBERT W. THOMPSON

U.S. Sen. Michael Enzi, PHR, expected a number of surprises during his freshman year in Congress. Not surprisingly, he got what he expected - both good and bad.

Shortly after taking the oath of office a year ago in the Capitol, Enzi got what most freshman senators would consider a plum assignment: a seat on the powerful Senate Labor and Human Resources Committee. For Enzi, a certified HR professional (and the first Society for Human Resource Management member to serve in the Senate), the assignment was a coup. A large portion of legislation that affects workplace safety, labor-management relations and other issues of interest to human resource professionals is channeled through the committee.

But Enzi had an even grander vision. He wanted to lead the charge in the Senate for reform of the Occupational Safety and Health Act, a 1970 law that has led to thousands of pages of regulations for employers. The business community's ill will toward the law and the agency that enforces it - the Occupational Safety and Health Administration (OSHA) - can be seen in the debate over regulatory reform planks in the Republicans' "Contract with America" that consumed Congress' attention in early 1995. There was probably no agency more maligned by deregulatory forces than OSHA, except perhaps the Environmental Protection Agency (EPA). Reform of the OSH Act was - and remains - a high-profile, politically charged issue.

Enzi convinced Senate leaders to let him serve as manager for the GOP's OSHA reform bill. So far, he hasn't let them down. Within weeks of its introduction in late September, the bill received a favorable report from the Labor and Human Resources Committee after what Enzi calls a "contentious," one-day voting session. The committee rejected all seven proposed amendments.

Yet Enzi also had his share of unpleasant learning experiences, a few of which he shared with HRMagazine during an interview late in the Senate's 1997 session.

Serving in Congress "is messier than I expected it to be - and more partisan than I expected it to be," he says. "Another surprise I've had has been the union concentration back here. ... There's a kind of feeling there, it appears, by the Democrats that a piece of legislation has to increase union membership before it's a good piece of legislation." Enzi believes the partisanship that creates a combative working environment on Capitol Hill could be reduced if senators were to socialize more often with those from the other side of the aisle. "There need to be more social opportunities for us to get together, where we're not under the same kinds of pressures and where we can find out that [other senators] are really people, not opponents."

However, Enzi is heartened by his work on OSHA reform. "When I first got here, I was told that freshmen never get the lead on a bill," comments the former mayor of Gillette, Wyo. "But I was rather insistent on OSHA because I have workers' comp [experience], and I know how that fits in with OSHA. I've been a safety manager for a company," he explains, referring to Dunbar Well Service Inc.in Gillette. "I've been involved in drug testing. I know what the federal laws are that apply to all of these things. And there's a need for some modernization. A lot of things have changed since the original OSH Act was passed."

Enzi believes he has been well-received in the Senate, even by Democrats who hold strikingly different ideas than he does about what Congress should - or shouldn't - do on workplace issues. He was pleased that he was able to get his OSHA bill out of committee after only one day of voting. (Committees often take two or three days to conclude voting on major bills.) Enzi attributes that success to the fact that he contacted every Democrat on the committee and took the time to explain the reasoning behind his proposal. He says he was "very pleased" when the committee's ranking Democrat, Sen. Edward Kennedy of Massachusetts, "said he hadn't seen a senator in 30 years work that hard on a bill."

Buoyed by his progress on OSHA reform, Enzi drafted another bill that would encourage businesses to audit their own environmental programs and clean up any pollution uncovered by the audits, rather than wait for the EPA to act. While serving in the Wyoming legislature, Enzi sponsored a similar bill that became a state law. However, the EPA has threatened to sanction states with their own environmental audit laws, arguing that the statutes allow businesses to evade more stringent federal regulation. Enzi and other members of the Wyoming delegation to Congress are fighting to change EPA's stance.

Enzi says he was "real pleased" after Sen. John Chafee, R-R.I., chairman of the Senate Environment and Public Works Committee, held a hearing on his audit proposal. Although Chafee "was somewhat reluctant to do the hearing," afterward the chairman "said that he was surprised at how reasonable the bill was and what the potential for it was. So he's willing to talk about it some more," Enzi said.

For more information about legislation discussed in this article, see the Governmental Affairs section of SHRM Online (http://www.shrm.org/government). The status of HR-related legislation is also summarized monthly in HR News' "Washington Scoreboard" and updated regularly on the SHRM Legislative Hotline (703-548-1305).

Robert W. Thompson is managing editor of SHRM's monthly newspaper, HR News.

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